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Discussing “how to survive the holidays” during the holidays is a pretty standard article for people to write. For many clients, such articles allow for self-reflection on how they approach the holidays and their interaction with their ex-spouse; or it helps build some confidence that they will manage the uncomfortable situations which arise around extended family. The problem is, if you are a client looking for advice on how to deal with holiday-related legal issues during the holidays, it is already too late to do anything. Due to scheduling constraints, attorney or client availability, negotiations and conferences, dealing with, for example, a Christmas issue should really begin in September or October.

Consequently, now that the winter holidays are nearly behind us, the next major source of friction for many people is how they are going to handle their kids’ summer vacations and educational decisions. Which camp? How many camps? When will you take vacation? Where is the vacation and who will be there? Who will be covering the kids? Who gets priority on choosing vacation weeks? Should there be a change in schools or extracurricular activities?

Addressing any or all of these questions cannot first occur in May. The earlier they can be addressed the greater the probability they will be worked out between the parties or, failing that, allow for enough time to take the issue to Court and have a decision rendered. Do not wait too long – the court will not consider a summer issue an “emergency” and allow for an expedited hearing simply because there is little time between when the disagreement occurred and when a decision must be made. You may find that petition slotted into the non-emergency hearing list and the ultimate decision affecting your 2016 summer instead of 2015.

Many family law attorneys notice a bump in their cases right after the holidays. People often wait to address issues until they have made it through this time of year and have the time and space away from friends and family to deal with a deeply personal issue such as divorce, or address a potentially contentious custodial issue. Having survived the holidays, or perhaps as a result of what happened over the holidays, they need to discuss their options or pursue an action. It is also a good time to take stock of what may come up in the near future.

This time of year is ideal for looking at the next six months in order to alleviate some of the stress and concern they may have about summer vacations or child care coverage when the kids are out of school. If you think that there may be a legal or logistical issue over the summer or following school year, it is worth the call to your attorney to review your custody order or the applicable agreement and see whether you need to address your concern sooner rather than later. You may save yourself significant amounts of money, aggravation, and disappointment.

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter@AaronWeemsAtty.

We are slowly observing some flesh of judicial precedent applied to the bones of the custody stature enacted by the General Assembly and made effective in January, 2011.  A recent and significant contribution to that came in a Superior Court decision which was ascribed precedential value on July 11.

S.W.D. v. S.A.R. is an appeal from a custody decision made in Armstrong County.  The dispute involved a child identified by initials in the opinion as B.A.D. and is reported at 2014 Pa. Super. 146.  The primary dispute revolved around where a five year old would attend kindergarten.  The parents disagreed and when that disagreement ended in selection of public versus church oriented kindergarten, the Father appealed.

The seminal question decided in this case was whether a school decision required the trial court to evaluate the sixteen specified custody factors legislated by 23 Pa.C.S. 5328(a).[1]  The Superior Court’s panel, consisting of Judges Stabile, Bowes and Wecht provide bench and bar with a cogent analysis of when the factors must be drawn from the statute book and applied to the facts in order for a trial court decision to be fully reviewed.

The Court latches on to the statute itself and its internal statement that the factors must be applied to any form of custody.  This is distinguished from custody decisions which may change terms but not form.  The Court decided that a decision related to where a child is schooled is not one that warrants analysis of all of the statutory factors, although it did note that a school change that required a change in the form of the custody (e.g.,  a school so distant that one parent could not fulfill the custody arrangement and get the child to school) might require the complete analysis.

The Court also cited its own decision in M.O. v. J.T.R. wherein the question was whether a parent awarded a custodial period had the duty to take time off from work when awarded custody during school vacation times.  85. A.3d 1058 (Pa. Super, 2014). In that opinion the Court stated that if the decision does not affect the physical allocation of time between the parents, the Section 5328 factors do not come into play. Id., at p. 1063, n. 4.

The panel also cited three other cases involving school selection as cases which did not involve changing the form of the custodial arrangement.  See, Staub, 960 A.2d 848 (Pa.S. 2008); Fox v. Garzilla, 875 A.2d 1104(Pa.S. 2005); Dolan, 548 A.2d 632 (Pa. S. 1988)

The Court notes that the 16 factors may become relevant in any custody decision and that both the factors and the general mission of any Court are to promote the child’s interest. All that the decision really concludes is that not every trial court opinion need come wrapped in a 16 point analysis.

Meanwhile, the ultimate decision is to reverse and remand. Why? In 2010 the trial court had imposed its version of a physical custody arrangement. But somewhere along the way the parties had decided to alter it to something else.  The petitions that brought them to court requested reinstatement of the 2010 order and, alternatively, judicial endorsement of the existing arrangement (i.e., “something else”). The Superior Court held that a request for something else besides the docketed order was, per force, a request to modify and required an analysis that did incorporate the statutory factors. So the cases was remanded for a full hearing on the question of whether a five year old is better served by spending 42.86% of time with Father or 50%.


[1] The newest factor effective 1/1/14 is involvement with child abuse and related protective services.  Sec 5328(a)(2.1)

If you are like most parents, you spent this past weekend thinking about what your kids needed to be ready for school, which can be stressful enough by itself.  If you are like some of my clients, you may have spent part of the weekend also worrying about  how to navigate through the beginning of school with your kids’ other parent, which can just add to the stress.

I want to take this moment to share with you some tips that all parents need to consider and also share some additional tips for those parents who are raising their kids in separate households to help alleviate the stress and help you enjoy what is surely an exciting time for your children!

1.       Breathe.  First and foremost, breathe!  If you have been separated for awhile, and you are anxious about the school year because history proves this year may be a struggle with your children’s other parent, take a deep breath!  Say the serenity prayer, resist being pulled into the struggle, resist drama created by the other parent, and try not to sweat the small stuff.

2.       Check your custody Order.  The biggest concern my clients have when facing a new school year is the fear of being left out of important information regarding their children.  They worry the teacher won’t know how to contact them, or they worry they may be blocked from getting access to their children’s records.  If you are raising your children apart from their other parent, you likely have a custody order outlining your roles and responsibilities.  The vast majority of parents share legal custody.  What this means is that each of you have an equal right to contact the school, the teacher, the doctors, etc., to make sure you know what your children need to be ready for their first day and the right to keep in contact with everyone to track your children’s progress.  If you are not sure if you have shared legal custody or the right to directly contact the school, check with your lawyer before taking any action that may go against the order you have.  Some parents readily share information with one another and are able to successfully work together to make sure the school knows about their situation and knows to contact both parents.  However, for some, this is just not their reality.  For the parents who are in this category, my advice is simple.  Call the school and let them know your children live in two households and ask that they contact you, in addition to the other parent, if there is an emergency.   The same advice is true of doctors and other caregivers of your children.  If you can’t keep the dialogue open with your children’s other parent, take steps to keep the dialogue open with everyone else who interacts with your children on a regular basis.

Continue Reading Tips for Gearing up for School!

It is relatively rare for domestic relations cases to be decided by the Supreme Court of the United States. There is a reason for that. The United States Supreme Court long ago decided that matters concerning the management of the family were best handled by the states and their courts rather than the federal judiciary. Only when questions affecting the U.S. Constitution arise does the highest court in our country decide a question where family matters are involved.

This did occur last week when the Supreme Court heard argument in two cases: Camreta v. Greene and Alford v. Greene, 588 F.3d 1011 (9th Cir 2009).  Both cases come out of the state of Washington and both were heard in that state’s federal court. Both cases were then appealed to the U.S. Court of Appeals for the 9th Circuit which covers the western United States. The U.S. Supreme Court decided that these cases warranted attention because there were important constitutional issues involved, 131 S. Ct. Reptr 456,457 (2010).

 

We all understand that we have freedom from unreasonable search and seizure by government personnel (usually police) investigating what they believe to be a crime. Since the late 1890s the United States has also adopted the view that people enjoy a right of privacy. Last, but not least, the U.S. Supreme Court has consistently held that people have a fundamental right to raise children in accordance with their wishes and that government intervention in family matters will be afforded the highest scrutiny.

 

The two cases argued last week involve government investigations into allegations that children were being abused by a parent. There are few subjects more problematic than family child abuse. First, children are usually unreliable witnesses. But as these cases properly observe; they are usually the only witnesses where parental abuse is alleged. Second, the parent who is not the subject of the allegations faces the worst dilemma a human being can endure. We may no longer love our spouse; we may not even like that person, but rarely does this attitude extend to the belief that a parent would physically abuse their own flesh and blood. But we all know it happens. Just not in our family.

 

In the Greene case it appears that investigators were contacted by a seven year old child’s school with information that the Father might have sexually abused the child. Both a law enforcement official and an employee from the county agency designated to investigate such allegations went to the child’s school to interview the child. The interview took place before any warrant was obtained nor was either parent notified that an investigation was underway.

 

As often occurs, the child gave conflicting statements as to what occurred, but the state prosecuted anyway. Ultimately, the Father was acquitted. At that time the mother sued the state for invading her child’s privacy and conducting and unreasonable search of her daughter without permission of either parent.

 

The question for the Court to decide is whether government officials have the right to interview your child without your permission, a warrant, court order or other exigent circumstances where it would be impossible to get those forms of permission. In this case, the individuals who did the interviews were state welfare officials and police officers. In theory, however, teachers, principals and guidance counselors are government officials, as well, so the decision could have a far wider impact than just the law enforcement community. In the second case, it was the child welfare authorities who questioned the child, not the police.

 

We have not read the briefs but from the reports we have examined on this issue it seems to have several red herrings. If a child witnessed an accident or was the victim of a crime not committed by a parent is parental permission or a warrant required to interview the child? The child is not the same person as the parent. Is there a higher level of due process required because the parent is an alleged perpetrator?  The answer should be negative.

 

Still, these are difficult questions. We live in an age when any parent could find that an altercation with the child results in the child complaining to school officials. They are required to report to law enforcement anything that they reasonably believe constitutes abuse. We have recently encountered this in cases where the child goes to school angry at a parent and decides to “report”. It puts school personnel in a precarious position as young children, in particular, are highly impressionable and not the best reporters of facts.

 

If you find yourself in this position, the typical response is to avoid seeking legal advice lest one “look guilty,” but these allegations are very, very serious and have both custodial and criminal implications that are quite far-reaching. Seek independent advice from an attorney before responding to any allegation that you have done harm to a child; even if you regard the allegation as frivolous.